The PEOPLE Plaintiff and Respondent v Armando HERNANDEZ Defendant and Appellant

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Hernandez's father testified he heard sirens on the day of the shooting and went outside with the defendant and the defendant's child. The defendant and his child were at home the entire afternoon watching television. 5. Post verdict proceedings. After the jury convicted Hernandez as charged, the trial court inquired about setting the matter for motions and sentencing. Hernandez asked if that would include the appeal. The trial court explained appeal was a different process and indicated defense counsel would speak to Hernandez regarding whether it would be appropriate to file motions prior to sentencing. When Hernandez responded he had questions, the trial court indicated it could put the matter over until the afternoon to permit Hernandez to confer with defense counsel and asked whether Hernandez wished to do that. Hernandez replied, “Sure, because I [have] questions. I ... just want an appeal for this and [to] get my witness from the Feds to come down, because [defense counsel] knew about it.” After defense counsel conferred with Hernandez, the trial court set the matter for October 29, 2008, for sentencing and motions. At the start of the hearing on October 29, 2008, the trial indicated it had read a letter from Hernandez and had provided copies of the letter to both counsel. FN1 The trial court stated it had “asked the attorneys to look into your claims before we go forward with the sentencing” and inquired whether Hernandez was willing to waive time for sentencing to permit defense counsel to investigate the issues raised in the letter. FN1. Hernandez's letter stated “critical information” about the crime had not been presented at trial. An investigator for the public defender's office interviewed an eyewitness who said Hernandez was not the driver. However, defense counsel told Hernandez it would take two years to bring the eyewitness to court and not to worry. Hernandez indicated defense counsel failed to subpena the eyewitness and failed to mention the eyewitness to the trial court. Further, defense counsel told Hernandez's sister at the last minute not to take the witness stand to testify Hernandez was at home at the time of the shooting, an individual named Walter was mentioned at trial but was never questioned about the shooting, and Contreras was arrested for murder on October 15, 2008, but was released. Hernandez replied he wanted the record to reflect his concern “about my eyewitness being subpoenaed—“ The trial court indicated some of the issues raised in the letter would be addressed at a Marsden hearing ( People v. Marsden, supra, 2 Cal.3d 118) after defense counsel's investigation into the matter had been completed. Defense counsel interjected that she intended to look into the information she previously did not have and most likely would prepare a motion for new trial. Hernandez waived time for sentencing and the trial court continued the matter for sentencing and motions, including a Marsden hearing, if needed. *5 After several continuances, defense counsel filed a motion for new trial based on newly discovered evidence. Defense counsel's declaration in support of the motion stated that on October 26, 2007, approximately one year before the trial commenced, the defense investigator assigned to this case, Richard Santiago, was contacted by a potential witness named Oscar Chihuahua. In a telephonic interview, Chihuahua stated that on the evening of the shooting, he was walking near the park when he saw a small vehicle parked on the north curb occupied by two males and a female. He saw a gray four-door Buick driven by a Black male who possibly had a pony tail and was wearing a red cap. Chihuahua continued walking, heard gunshots and saw the Buick speed west on 49th Street. Chihuahua knows Hernandez's wife and knows Hernandez by sight. When Chihuahua heard Hernandez had been arrested in connection with the shooting, he immediately notified Hernandez's wife and described what he had seen. FN2 FN2. Santiago's Investigation Report was attached to defense counsel's declaration as an exhibit. Santiago conducted a follow-up interview by telephone with Chihuahua on March 18, 2008, in which Chihuahua stated he was willing to testify for the defense. However, in July of 2008, the defense investigator was unable to serve a subpoena on Chihuahua. The Deputy District Attorney thereafter advised
defense counsel that Chihuahua was in federal custody on an unrelated narcotics matter. Defense counsel declared that, due to the age of the case, the trial court hearing pretrial motions was unwilling to allow defense counsel a continuance to have Chihuahua transferred into the custody of the sheriff's department. FN3 FN3. In a declaration in support of a motion for a continuance filed July 25, 2008, defense counsel stated Chihuahua was in federal custody and counsel was preparing a petition for writ of habeas corpus to secure his testimony at trial. The motion also sought a continuance on the grounds defense counsel would be engaged in trial until August 1, 2008, and the defense interrogation expert was unavailable until the end August of 2008. The trial court granted the motion and continued the matter to August 21, 2008. Hernandez's declaration in support of the motion for new trial averred that, after he had been convicted in this case, he was housed in the same dorm of the county jail as Juan Contreras, aka Rascal, who had been arrested on a theft charge. Contreras told Hernandez that, on the day of the shooting, Walter Castillo and Brian were at Brian's house across the street from Hoover Park. Walter saw a green car occupied by a rival gang member. Walter chirped one Charro and told him to “smoke” the rival gang member. Charro drove to the area in a Chrysler but the rival gang member left before Charro arrived. Charro then went to Contreras's house. Approximately one hour later, Walter saw a white car occupied by Jaime Sanchez. Walter again chirped Charro and told him to return and “smoke” Jaime Sanchez. Charro pulled up next to the white car in the Chrysler and fired one shot with a 357 Magnum. Charro drove the Chrysler to Contreras's house and parked it in the backyard. Contreras said the Chrysler was in his name because he was doing Charro a favor. Defense counsel declared her investigator had learned, through the Department of Motor Vehicles, that a Chrysler was registered to Contreras at the time of the shooting. Hernandez's wife, Vanesa Esquivel, also submitted a declaration in support of the motion for new trial. Ezquivel indicated Hernandez telephoned her on the day Hernandez was arrested and told her to speak to Rascal's girlfriend, Rosa. Two days later, Rosa told Esquivel that neither Rascal nor Hernandez was involved in the shooting and an individual named Leovardo Hernandez had committed the murder in a Chrysler he purchased under Rascal's name. Further, Leovardo Hernandez was attempting to leave the country. Esquivel and Rosa went to the 77th Street Station that evening and spoke to Detective Chavez on the telephone. Rosa advised Detective Chavez that Leovardo Hernandez, aka Charro, was responsible for the murder and he was planning to leave town. Rosa stated she was aware of this information because Charro and his girlfriend told her Charro committed the murder days after it happened. Rosa advised Detective Chavez the vehicle used in the crime currently was parked in front of Charro's house. Detective Chavez responded it would not matter because Charro was not a suspect. The next day, Rosa told Esquivel that an individual named Oscar who lived in the area knew what happened. They located Oscar and advised him Hernandez had been arrested for the murder. Oscar stated he observed the shooting and knew it was not committed by Hernandez but was committed by a young male driving a Chrysler. Esquivel attempted to contact Detective Chavez the following day but was advised he was out of town. Several days later, Rosa told Esquivel that Detective Chavez had contacted her and said he could not help because Charro was not a suspect. By this time, Rosa had been informed that Leovardo Hernandez was in Mexico. *6 The People filed opposition to the motion which asserted the evidence cited in support of the motion was cumulative to the evidence adduced at trial, the evidence was not new and could have been produced with reasonable diligence, and the evidence would not lead to a different result on retrial. The People noted the defense was aware of Oscar Chihuahua as a potential witness several months before the trial commenced. However, defense announced ready for trial and Hernandez refused to waive time in September of 2008 because he was eager to start the trial. FN4 FN4. On August 27, 2008, defense counsel filed a motion for a continuance of the trial due to a death in counsel's family. On September 2, 2008, an attorney standing in for defense counsel at the hearing on the motion stated Hernandez was “really quite anxious to have this case begin and does not want to waive any time at this point....” The trial court denied the request for a continuance and, two days later, on September
Page 1 and 2: Not Reported in Cal.Rptr.3d, 2011 W
Page 3: *3 On April 6, 2003, Inglewood poli
Page 7 and 8: circumstances might also reasonably
Page 9 and 10: inadmissible hearsay are insufficie
Page 11 and 12: evidence. The trial court appointed

The PEOPLE Plaintiff and Respondent v Armando HERNANDEZ Defendant and Appellant

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